Tuesday, January 8, 2008

Top Screen enforcement

There are sure to be many facilities beginning to think about not completing a Top Screen or filing with deflated numbers in order to avoid being classified as high-risk facilities. While no one knows how much facilities will have to spend to implement adequate Site Security Plans it is sure to be costly. Only facilities that are designated High-Risk will have to spend any additional money on security.


We have seen examples in the news of companies that deliberately falsify health and safety data to avoid the cost of government regulations. Surely there will be a significant number of facilities that will do the same with government security regulations. While 100% compliance will probably never be achievable a high degree of compliance will be necessary to provide an adequate level of security for the people of the United States.


DHS Enforcement


The facilities that do not adequately complete their Top Screen submissions will fall into two categories; those that deliberately falsify or fail to submit data and those that inadvertently submitted incorrect data. Both groups will probably escape detection during the early years of the CFATS program; DHS simply does not have enough enforcement personnel.


To make matters worse, those personnel that DHS does have will be working with facilities that have been designated High-Risk, not looking for non-compliant facilities. Because DHS was forbidden from requiring specific security measures the evaluation of site security plans and their implementation will be manpower intensive. Risk Based Performance Standards, while technically appropriate, will require extensive back and forth dialog between facilities and DHS.


Because of CVI rules, many of the other methods that federal agencies use to help them identify non-compliant facilities will have little utility in enforcing CFATS. Because of the very limited number of people at a facility that will ever see the submitted Top Screen the chance of having whistleblowers coming forward will be very limited. Likewise, competitors and neighbors will have no way of knowing if a facility has completed a Top Screen or accurately provided the necessary data.


Data Mining


DHS has taken one important step that could make it easier to detect non-compliant facilities; they required all data submission in CSAT to be done electronically. The data base will be huge and it will be comprehensive. The data includes multiple methods of facility identification, including DUNS numbers (Duns and Bradstreet), NAICS Industry code (Census Bureau), and EPA Registration numbers, along with facility name, address and physical location (longitude and latitude).


All of this information will allow DHS to take this data and compare it to other government and private databases to identify facilities that probably should have completed Top Screens. For example, if DHS notes that a large percentage of meat processors completed Top Screens due to having more than 10,000 pounds of anhydrous ammonia on site for their refrigeration system, they could look at the remaining meat processors.


The initial follow-up on these non-reporting facilities could consist of a simple letter asking them how much anhydrous ammonia they have on site. This would allow DHS to potentially identify some of the facilities that did not realize they had a duty to complete a Top Screen. Some deliberately non-compliant facilities in that category would also then self-identify once they knew that DHS was looking at them.


Future Actions


One fairly simple action that DHS could take to make it easier to identify facilities that would be required to complete Top Screen submissions would be to require manufacturers and distributors to report shipments of any COI in excess of the STQ. While this would not capture all facilities, it would identify those facilities with the largest inventories of these chemicals.


Registration of suppliers and users of selected chemicals is another possible step. This has been done with Chemical Weapons Convention chemicals (under the Commerce Department). Congress has just taken this step with fertilizer grade ammonium nitrate. This type action would certainly be justified with inhalation hazard chemicals.

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